Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Conveyancing and executry services S

[F1 16 Regulation by the Law Society of conveyancing and executry services S

(1) The Council of the Law Society of Scotland have the function of regulating the provision of conveyancing and executry services under sections 17 to 23 of this Act.

(2) The Scottish Ministers may make grants to the Council towards expenses incurred, or to be incurred, by them in connection with the exercise of that function.

(3) Any grant made under subsection (2) above may be made subject to such terms and conditions (including conditions as to repayment) as the Scottish Ministers consider appropriate and they may vary such terms and conditions after the grant is made.]

Textual Amendments

F1 S. 16 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(2); S.S.I. 2003/384, art. 2(d)

17 [F2 Conveyancing practitioners]. S

[F3 (1) The Council shall establish and maintain a register of conveyancing practitioners, which shall be available for inspection by any person without charge.

(1A) The register shall include an entry in respect of any person who was registered in the register of qualified conveyancers maintained by the Scottish Conveyancing and Executry Services Board immediately before the coming into force of this subsection.

(1B) The entry in the register in respect of any such person who, immediately before the coming into force of this subsection, provided conveyancing services to the public for a fee, gain or reward shall be annotated to the effect that he is an independent conveyancing practitioner; but that annotation shall be removed if he ceases to provide such services for a fee, gain or reward.]

(2) Where, on an application made to them by a natural person in such form as they may determine, and on the provision of such information in connection with the application as they consider necessary, the [F4 Council] are satisfied that the applicant—

(a) is a fit and proper person to provide conveyancing services as a [F2 conveyancing practitioner]; and

(b) complies with the requirements of rules made under subsection [F5 (11)(a) below and rules referred to in subsection (11B) below in so far as they relate to educational qualifications and practical training],

the [F4 Council] shall grant the application and shall enter the applicant’s name in the register of [F2 conveyancing practitioners].

[F6 (2A) The Council may charge such fee for registration under subsection (2) above as they may determine.]

F7 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F8 (4) Where the Council—

(a) grant an application under subsection (2) above, they may attach such conditions as they may determine, and shall—

(i) record any such conditions against the applicant’s name in the register; and

(ii) give the applicant written reasons for any decision to attach such conditions;

(b) refuse such an application, they shall give the applicant written reasons for their decision.]

[F9 (5) Where the Council—

(a) grant an application under subsection (2) above subject to conditions; or

(b) refuse such an application,

the applicant may, within 21 days of the date on which the Council’s decision is intimated to him, apply to the Council to review their decision.]

(6) Where the [F4 Council] have reviewed a decision mentioned in subsection (5) above the applicant may, within 21 days of the date on which the outcome of such review is intimated to him, apply to the Court of Session and the Court may make such order in the matter as it thinks fit.

F10 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Any person or body other than—

(a) an independent [F2 conveyancing practitioner]; or

(b) a solicitor; or

(c) an incorporated practice within the meaning of section 65 of the 1980 Act (interpretation); or

(d) a multi-disciplinary practice within the meaning of that section,

who employs a [F2 conveyancing practitioner] under a contract of employment for the purpose of providing conveyancing services for persons other than himself or, as the case may be, themselves, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(9) Where a [F2 conveyancing practitioner] applies to the [F4 Council] to remove his name from the register the [F4 Council] shall—

(a) where, in the case of an independent [F2 conveyancing practitioner], they are satisfied that he has made adequate arrangements with respect to the business he then has in hand; and

(b) in any other case, without further enquiry,

grant the application and amend the register accordingly.

(10) The [F4 Council] shall send to the Keeper of the Registers of Scotland—

(a) as soon as practicable after 1st April in each year, a list of all [F2 conveyancing practitioners]; and

(b) written notice of any subsequent change to the register of [F2 conveyancing practitioners].

[F11 (11) The Council may make rules for regulating the conduct and practice of conveyancing practitioners, and such rules may, in particular, make provision with respect to—

(a) educational qualifications and practical training (including continuing professional development);

(b) the manner in which such practitioners conduct the provision of conveyancing services;

(c) complaints against such practitioners; and

(d) in the case of independent conveyancing practitioners—

(i) conflicts of interest;

(ii) the contractual obligations of such practitioners;

(iii) the holding of and accounting for clients' money;

(iv) the disclosure of and accounting for commission; and

(v) professional indemnity insurance and other arrangements for meeting claims by clients,

and, in respect of the matters referred to in paragraphs (a) to (c) above, different provision may be made for different cases or classes of case.

(11A) Rules made under subsection (11) above shall not have effect unless they have been approved by—

(a) the Lord President of the Court of Session; and

(b) subject to section 40 of this Act, the Scottish Ministers.

(11B) Any—

(a) rules as to the requirements to be satisfied by any person applying for registration as a qualified conveyancer; and

(b) regulations as to the conduct and practice of independent qualified conveyancers,

having effect immediately before the coming into force of this subsection shall have effect with respect to conveyancing practitioners and independent conveyancing practitioners respectively as if they were rules made under subsection (11) above which have been approved in accordance with subsection (11A) above; and the Council may amend or repeal any such rules or regulations.]

F12 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13) The [F4 Council] shall, in relation to the provision of conveyancing services by independent [F2 conveyancing practitioners] F13 ...—

F14 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) make suitable arrangements (whether by means of insurance policies or otherwise) to secure that any successful claims made against such a [F15 practitioner] in connection with the provision of conveyancing services are satisfied.

F16 (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16 (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(16) It shall be the duty of—

(a) [F17 a] [F2 conveyancing practitioner] to comply with the requirements of [F18 any rules made under subsection (11) above, any rules and regulations referred to in subsection (11B)] above and any direction of the [F4 Council] under section 20(2)(a) or (b) of this Act; and

(b) the [F4 Council] to ensure such compliance.

(17) Where, under or by virtue of any enactment—

(a) a warrant of registration is required for recording any deed in the General Register of Sasines; or

(b) an application for registration is required for registering an interest in land in the Land Register of Scotland,

any reference in that or any other enactment or any subordinate instrument to such a warrant or application being signed by a solicitor or agent shall be construed as including a reference to the warrant or application being signed by a [F2 conveyancing practitioner], and any enactment or subordinate instrument making provision as to the form of such a warrant or application shall, with the necessary modifications, apply in relation to a [F2 conveyancing practitioner].

(18) A [F2 conveyancing practitioner] who signs a warrant or application by virtue of subsection (17) above shall, in addition to any matters required to be specified after his signature by any enactment or subordinate instrument, specify the independent [F2 conveyancing practitioner], solicitor or incorporated practice by whom he is employed or, where he is himself an independent [F2 conveyancing practitioner], his designation as such.

(19) Any person who—

(a) wilfully and falsely—

(i) pretends to be a [F2 conveyancing practitioner]; or

(ii) takes or uses any name, title, addition or description implying that he is a [F2 conveyancing practitioner]; or

(b) being a [F2 conveyancing practitioner], provides conveyancing services at a time when his registration as such is suspended,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(20) Any [F2 conveyancing practitioner] not registered as an independent [F2 conveyancing practitioner] F19 ... who—

(a) wilfully and falsely—

(i) pretends to be an independent [F2 conveyancing practitioner]; or

(ii) takes or uses any name, title, addition or description implying that he is an independent [F2 conveyancing practitioner]; or

(b) provides conveyancing services to the public for a fee, gain or reward,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(21) Where an offence under subsection (19)(a) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a) any director, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(22) Where an offence under subsection (19)(a) above is committed by a partnership and is proved to have been committed with the consent or connivance of a partner, he (as well as the partnership) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(23) Any independent [F2 conveyancing practitioner] who provides conveyancing services upon the account of, or for the profit of, any person other than—

(a) a solicitor;

(b) an incorporated practice within the meaning of section 65 of the 1980 Act;

(c) a multi-disciplinary practice within the meaning of that section; or

(d) another independent [F2 conveyancing practitioner],

knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice or independent [F2 conveyancing practitioner], shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(24) Any rule imposed by any professional or other body which purports to prevent a solicitor or any person mentioned in section 32(2) of the 1980 Act (unqualified persons who may draw and prepare documents relating to heritable estate etc.) from—

(a) acting as an employee of an independent [F2 conveyancing practitioner] in connection with the provision of conveyancing services; or

(b) acting on behalf of an independent [F2 conveyancing practitioner] in connection with the provision of such services,

shall be of no effect.

Textual Amendments

F2 Words in s. 17 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(b); S.S.I. 2003/384, art. 2(d)

F3 S. 17(1)-(1B) substituted for s. 17(1) (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(d); S.S.I. 2003/384, art. 2(d)

F4 Word in s. 17 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(a); S.S.I. 2003/384, art. 2(d)

F5 Words in s. 17(2)(b) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(e); S.S.I. 2003/384, art. 2(d)

F6 S. 17(2A) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(f); S.S.I. 2003/384, art. 2(d)

F7 S. 17(3) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(g); S.S.I. 2003/384, art. 2(d)

F8 S. 17(4) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(h); S.S.I. 2003/384, art. 2(d)

F9 S. 17(5) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(i); S.S.I. 2003/384, art. 2(d)

F10 S. 17(7) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(j); S.S.I. 2003/384, art. 2(d)

F11 S. 17(11)-(11B) substituted for s. 17(11) (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(k); S.S.I. 2003/384, art. 2(d)

F12 S. 17(12) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(l); S.S.I. 2003/384, art. 2(d)

F13 Words in s. 17(13) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(m)(i); S.S.I. 2003/384, art. 2(d)

F14 S. 17(13)(a) and word repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(m)(ii); S.S.I. 2003/384, art. 2(d)

F15 Words in s. 17 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(c); S.S.I. 2003/384, art. 2(d)

F16 S. 17(14)(15) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(n); S.S.I. 2003/384, art. 2(d)

F17 Word in s. 17(16) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(o)(i); S.S.I. 2003/384, art. 2(d)

F18 Words in s. 17(16) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(o)(ii); S.S.I. 2003/384, art. 2(d)

F19 Words in s. 17(20) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(3)(p); S.S.I. 2003/384, art. 2(d)

Commencement Information

I1 s. 17 wholly in force at 1.3.1997; s. 17 not in force at Royal Assent see s. 75(2); s. 17(3)(11)-(15) in force at 30.9.1991 by S.I. 1991/2151, art. 3,Sch.; s. 17 in force at 1.3.1997 in so far as not already in force by S.I. 1996/2894, art. 3, Sch (as amended by S.I. 1996/2966, art. 2)

18 Executry practitioners. S

[F20 (1) The Council shall establish and maintain a register of executry practitioners, which shall be available for inspection by any person without charge.

(1A) The register shall include an entry in respect of any person who was registered in the register of executry practitioners maintained by the Scottish Conveyancing and Executry Services Board immediately before the coming into force of this subsection.]

(2) Where, on an application made to them [F21 by a natural person] in such form as they may determine, the [F22 Council] are satisfied that the applicant fulfils the conditions specified in subsection (3) below, the [F22 Council] shall grant the application and shall enter the applicant’s name in the register of executry practitioners.

[F23 (2A) The Council may charge such fee for registration under subsection (2) above as they may determine.]

(3) The conditions referred to in subsection (2) above are that the applicant—

(a) is a fit and proper person to provide executry services; [F24 and]

(b) complies with the requirements [F25 of rules made under subsection (10)(a) below and regulations referred to in subsection (10B) below in so far as such regulations relate to educational qualifications and practical training]; F26 ...

F26 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The [F22 Council] may require an applicant under subsection (2) above to provide such further information in connection with the application as they consider necessary.

(5) Where the [F22 Council]—

(a) grant an application under subsection (2) above, they may attach such conditions as they may determine, and shall

[F27 (i)] record any such conditions against the applicant’s name in the register; [F28 and

(ii) give the applicant written reasons for any decision to attach such conditions;]

(b) refuse such an application, they shall give the applicant written reasons for their decision.

(6) Where the [F22 Council]—

(a) grant an application under subsection (2) above subject to conditions; or

(b) refuse such an application,

the applicant may, within 21 days of the date on which the [F22 Council]’s decision is intimated to [F29 him], apply to the [F22 Council] to review their decision.

(7) Where the [F22 Council] have reviewed a decision mentioned in subsection (6) above the applicant may, within 21 days of the date on which the outcome of such review is intimated to [F29 him], apply to the Court of Session and the Court may make such order in the matter as it thinks fit.

(8) Where an executry practitioner applies to the [F22 Council] to remove [F30 his] name from the register the [F22 Council] shall, if they are satisfied that the practitioner has made adequate arrangements with respect to the business [F30 he] then has in hand, grant the application and amend the register accordingly.

(9) The [F22 Council] shall send to the Keeper of the Registers of Scotland and to each sheriff clerk—

(a) as soon as practicable after 1st April in each year, a list of all executry practitioners; and

(b) written notice of any subsequent change to the register of executry practitioners.

[F31 (10) The Council may make rules for regulating the conduct and practice of executry practitioners, and such rules may, in particular, make provision with respect to—

(a) educational qualifications and practical training (including continuing professional development);

(b) the manner in which such practitioners conduct the provision of executry services;

(c) complaints against such practitioners; and

(d) in the case of such practitioners who provide executry services to the public for a fee, gain or reward—

(i) conflicts of interest;

(ii) the contractual obligations of such practitioners;

(iii) the holding of and accounting for clients' money;

(iv) the disclosure of and accounting for commission; and

(v) professional indemnity insurance and other arrangements for meeting claims by clients,

and, in respect of the matters referred to in paragraphs (a) to (c) above, different provision may be made for different cases or classes of case.

(10A) Rules made under subsection (10) above shall not have effect unless they have been approved by—

(a) the Lord President of the Court of Session; and

(b) subject to section 40 of this Act, the Scottish Ministers.

(10B) Any regulations as to the conduct and practice of executry practitioners having effect immediately before the coming into force of this subsection shall have effect as if they were rules made under subsection (10) above which have been approved in accordance with subsection (10A) above; and the Council may amend or repeal any such regulations.]

F32 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) It shall be the duty of—

(a) an executry practitioner to comply with the requirements of [F33 any rules made under subsection (10) above, any regulations referred to in subsection (10B) ] above and any direction of the [F22 Council] under section 20(2)(a) or (b) of this Act; and

(b) the [F22 Council] to ensure such compliance.

(13) Any person who—

(a) wilfully and falsely—

(i) pretends to be an executry practitioner; or

(ii) takes or uses any name, title, addition or description implying that he is an executry practitioner; or

(b) being an executry practitioner, provides executry services at a time when his registration as such is suspended,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

[F34 (13A) Subject to subsection (13B) below, an executry practitioner who provides executry services to the public for a fee, gain or reward shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(13B) Subsection (13A) above shall not apply to an executry practitioner who, with the approval of the Scottish Conveyancing and Executry Services Board, provided executry services to the public for a fee, gain or reward at any time before the coming into force of that subsection.]

(14) Where an offence under subsection (13) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a) any director, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(15) Where an offence under subsection (13) above is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Textual Amendments

F20 S. 18(1)(1A) substituted for s. 18(1) (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(b); S.S.I. 2003/384, art. 2(d)

F21 Words in s. 18(2) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(c); S.S.I. 2003/384, art. 2(d)

F22 Word in s. 18 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(a); S.S.I. 2003/384, art. 2(d)

F23 S. 18(2A) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(d); S.S.I. 2003/384, art. 2(d)

F24 Word in s. 18(3)(a) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(e)(i); S.S.I. 2003/384, art. 2(d)

F25 Words in s. 18(3)(b) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(e)(ii); S.S.I. 2003/384, art. 2(d)

F26 S. 18(3)(c) and word repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(e)(iii); S.S.I. 2003/384, art. 2(d)

F27 Sub-para reference (i) in s. 18(5)(a) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(f)(i); S.S.I. 2003/384, art. 2(d)

F28 S. 18(5)(a)(ii) and word added (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(f)(ii); S.S.I. 2003/384, art. 2(d)

F29 Word in s. 18(6)(7) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(g); S.S.I. 2003/384, art. 2(d)

F30 Words in s. 18(8) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(h); S.S.I. 2003/384, art. 2(d)

F31 S. 18(10)-(10B) substituted for s. 18(10) (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(i); S.S.I. 2003/384, art. 2(d)

F32 S. 18(11) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(j); S.S.I. 2003/384, art. 2(d)

F33 S. 18(12) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(k); S.S.I. 2003/384, art. 2(d)

F34 S. 18(13A)(13B) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(4)(l); S.S.I. 2003/384, art. 2(d)

Commencement Information

I2 S. 18 wholly in force 1.3.1997; s. 18 not in force at Royal Assent see s. 75(2); s. 18(10)-(11) in force at 30.9.1991 by S.I. 1991/2151, art. 3,Sch.; s. 18 in force at 1.3.1997 in so far as not already in force by S.I. 1996/2894 art. 3, Sch. (as amended by S.I. 1996/2966, art. 2)

Prospective

F35 19 Executry services by recognised financial institutions. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F35 S. 19 repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(5); S.S.I. 2003/384, art. 2(d)

20 Professional misconduct, inadequate professional services, etc. S

(1) Where, after such inquiry as they consider appropriate (whether or not following a complaint to them) and after giving the practitioner concerned an opportunity to make representations, the [F36 Council] are satisfied that a practitioner—

(a) is guilty of professional misconduct;

(b) has provided inadequate professional services;

(c) has failed to comply with [F37 rules made under section 17(11) or 18(10), or rules or regulations referred to in section 17(11B) or 18(10B),] of this Act; or

(d) has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a [F38 conveyancing practitioner] or, as the case may be, executry services as an executry practitioner,

they may take such of the steps set out in subsection (2) below as they think fit and shall, without prejudice to subsection (6) below, intimate their decision to the practitioner by notice in writing.

(2) The steps referred to in subsection (1) above are—

(a) to determine that the amount of fees and outlays which the practitioner may charge in respect of such services as the [F36 Council] may specify shall be—

(i) nil; or

(ii) such amount as the [F36 Council] may specify in the determination,

and to direct the practitioner to comply, or secure compliance, with such of the requirements set out in subsection (5) below as appear to them to be necessary to give effect to the determination;

(b) to direct the practitioner to secure the rectification at his F39 ... own expense of any such error, omission or other deficiency arising in connection with the services as the [F36 Council] may specify;

(c) to attach conditions (or, as the case may be, further conditions) to the registration of the practitioner or to vary any condition so attached;

F40 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F40 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) in a case where the practitioner has provided inadequate professional services, to direct the practitioner to pay to the client by way of compensation such sum, not exceeding £1,000, as the [F36 Council] may specify;

F40 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h) to make a report of the [F36 Council's] findings to any other person exercising functions with respect to—

(i) the practitioner; or

(ii) any person employed by or acting on behalf of the practitioner in connection with the provision of the services.

[F41 (2A) Where—

(a) after holding an inquiry into a complaint against a practitioner, the Scottish Solicitors' Discipline Tribunal are satisfied that—

(i) he has been guilty of professional misconduct; or

(ii) he has provided inadequate professional services; or

(b) a practitioner has been convicted by any court of an act involving dishonesty or has been sentenced to a term of imprisonment of not less than 2 years,

the Tribunal may take such of the steps set out in subsection (2B) below as they think fit.

(2B) The steps referred to in subsection (2A) above are—

(a) to suspend or revoke the registration of the practitioner;

(b) subject to subsection (3) below, to impose on the practitioner a fine not exceeding £10,000;

(c) to censure the practitioner; and

(d) any of the steps which the Council may take in respect of a practitioner under subsection (2)(a) to (f) above.]

(3) The [F42 Tribunal] shall not impose a fine under subsection [F43 (2B)(b)] above where, in relation to the subject matter of the [F42 Tribunal's] inquiry, the practitioner has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than two years.

(4) Any fine imposed under subsection [F43 (2B)(b)] above shall be treated for the purposes of [F44 section 211(5) of the Criminal Procedure (Scotland) Act 1995] (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.

(5) The requirements referred to in subsection (2)(a) above are—

(a) to refund, whether in whole or to any specified extent, any amount already paid by or on behalf of the client in respect of the fees and outlays of the practitioner in connection with the services; and

(b) to waive, whether wholly or to any specified extent, the right to recover those fees and outlays.

(6) Where the [F36 Council] make a direction under subsection (2)(a), (b) or (f) above [F45 , or the Scottish Solicitors' Discipline Tribunal, by virtue of subsection (2B)(d) above, make a similar direction, the Council or (as the case may be) the Tribunal] shall, by notice in writing, require the practitioner to which the direction relates to give [F46 to the Council], within such period being not less than 21 days as the notice may specify, an explanation of the steps which he F47 ... has taken to comply with the direction.

(7) Where a practitioner—

(a) fails to comply with a notice under subsection (6) above; or

(b) complies with such a notice but the [F36 Council] are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates,

the [F36 Council] may apply to the Court of Session for an order requiring the practitioner to comply with the direction to which the notice relates within such time as the court may order.

(8) Where the [F36 Council] take a step set out in subsection (2)(c) [F48 above or the Scottish Solicitors' Discipline Tribunal, by virtue of subsection (2B)(d) above, take a similar step or the Tribunal take a step set out in subsection (2B)(a)] above and—

[F49 (a) any period specified in this section for applying for review or for the making of an appeal in respect of the matter has expired without such a review having been applied for or such an appeal having been made;]

(b) where such an application [F50 or appeal] is made, the matter is finally determined in favour of the [F36 Council's] [F51 or, as the case may be, Tribunal's] decision or the application [F50 or appeal] is withdrawn,

[F52 the Council] shall amend the register of executry practitioners or, as the case may be, the register of [F38 conveyancing practitioners] accordingly.

F53 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F53 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) Where the [F36 Council] take a step set out in subsection (2)(a) to [F54 (f)] above, the practitioner concerned may—

(a) within 21 days of the date on which the [F36 Council's] decision is intimated to F55 ... him, apply to the [F36 Council] to review their decision; and

(b) within 21 days of the date on which the outcome of such review is intimated to [F56 him, appeal to the Scottish Solicitors' Discipline Tribunal against the decision made in any such review; and the Tribunal may quash, confirm or vary that decision]

[F57 (11A) Within 21 days of the date on which—

(a) the outcome of any appeal under subsection (11)(b) above; or

(b) the taking of any step referred to in subsection (2B) above,

is intimated to the practitioner concerned, he may appeal to the Court of Session against the decision made by the Tribunal in the appeal or, as the case may be, to take such a step; and the Court may make such order in the matter as it thinks fit.]

F58 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13) The Secretary of State, after consulting the [F36 Council], may by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection (2)(f) above by substituting for the sum for the time being specified in that provision such other sum as he considers appropriate.

(14) The taking of any steps under subsection (2) [F59 or (2B)] above shall not be founded upon in any proceedings for the purpose of showing that the practitioner in respect of whom the steps were taken was negligent.

(15) A direction under subsection (2)(f) above to a practitioner to pay compensation to a client shall not prejudice any right of that client to take proceedings against that practitioner for damages in respect of any loss which he alleges he has suffered as a result of that practitioner’s negligence, and any sum directed to be paid to that client under that provision may be taken into account in the computation of any award of damages made to him in any such proceedings.

(16) The Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection [F60 (2B)(b)] above by substituting for the amount for the time being specified in that provision such other amount as appears to him to be justified by a change in the value of money.

(17) In this section “executry practitioner” and “[F38 conveyancing practitioner]” respectively include any executry practitioner or [F38 conveyancing practitioner] whether or not F61 ... he was registered as such at the time when the subject matter of the [F62 Council’s or, as the case may be, Tribunal's] inquiry occurred and notwithstanding that subsequent to that time F61 ... he has ceased to be so registered.

Textual Amendments

F36 Words in s. 20 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(a); S.S.I. 2003/384, art. 2(d)

F37 Words in s. 20(1)(c) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(c); S.S.I. 2003/384, art. 2(d)

F38 Words in s. 20 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(b); S.S.I. 2003/384, art. 2(d)

F39 Words in s. 20(2)(b) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(d)(i); S.S.I. 2003/384, art. 2(d)

F40 S. 20(2)(d)(e)(g) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(d)(ii); S.S.I. 2003/384, art. 2(d)

F41 S. 20(2A)(2B) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(e); S.S.I. 2003/384, art. 2(d)

F42 Words in s. 20(3) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(f); S.S.I. 2003/384, art. 2(d)

F43 Words in s. 20(3)(4) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(g); S.S.I. 2003/384, art. 2(d)

F44 Words in s. 20(4) substituted (1.4.1996) by 1995 c. 40, s. 5, Sch. 4 para. 78

F45 Words in s. 20(6) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(h)(i); S.S.I. 2003/384, art. 2(d)

F46 Words in s. 20(6) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(h)(ii); S.S.I. 2003/384, art. 2(d)

F47 Words in s. 20(6) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(h)(iii); S.S.I. 2003/384, art. 2(d)

F48 Words in s. 20(8) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(i)(i); S.S.I. 2003/384, art. 2(d)

F49 S. 20(8)(a) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(i)(ii); S.S.I. 2003/384, art. 2(d)

F50 Words in s. 20(8)(b) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(i)(iii); S.S.I. 2003/384, art. 2(d)

F51 Words in s. 20(8)(b) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(i)(iv); S.S.I. 2003/384, art. 2(d)

F52 Words in s. 20(8) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(i)(v); S.S.I. 2003/384, art. 2(d)

F53 S. 20(9)(10) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(j); S.S.I. 2003/384, art. 2(d)

F54 Word in s. 20(11) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(k)(i); S.S.I. 2003/384, art. 2(d)

F55 Words in s. 20(11)(a) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(k)(ii); S.S.I. 2003/384, art. 2(d)

F56 Words in s. 20(11)(b) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(k)(iii); S.S.I. 2003/384, art. 2(d)

F57 S. 20(11A) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(l); S.S.I. 2003/384, art. 2(d)

F58 S. 20(12) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(m); S.S.I. 2003/384, art. 2(d)

F59 Words in s. 20(14) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(n); S.S.I. 2003/384, art. 2(d)

F60 Words in s. 20(16) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(o); S.S.I. 2003/384, art. 2(d)

F61 Words in s. 20(17) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(p)(i); S.S.I. 2003/384, art. 2(d)

F62 Words in s. 20(17) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(6)(p)(ii); S.S.I. 2003/384, art. 2(d)

[F63 20A Review of decisions S

(1) The Council shall establish a procedure under which they shall, on the application of any aggrieved person, review any relevant decision made by them.

(2) In subsection (1) above—

(a) “relevant decision” means–

(i) a refusal to grant an application for registration as a practitioner;

(ii) a decision to grant an application for registration as a practitioner subject to conditions; or

(iii) a decision to take any step set out in subsection (2)(a) to (f) of section 20 of this Act; and

(b) “aggrieved person” means the applicant or, as the case may be, the practitioner concerned.]

Textual Amendments

F63 S. 20A inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(7); S.S.I. 2003/384, art. 2(d)

21 [F64 Council]’s intervention powers. S

(1) The powers conferred on the [F64 Council] by this section may be exercised if, after such inquiry (if any) as the [F64 Council] consider appropriate, it appears to them to be desirable to do so for the purpose of protecting the interests of the clients, or prospective clients, of an independent [F65 conveyancing practitioner] or an executry practitioner (each of whom is in this section referred to as a “relevant practitioner”).

(2) The [F64 Council] may, in particular, exercise any such power where it appears to them that a relevant practitioner—

(a) is no longer a fit and proper person to provide conveyancing services or, as the case may be, executry services;

(b) has ceased, for whatever reason, to provide such services; or

(c) has failed, or is likely to fail, to comply with [F66 any rules or regulations referred to in section 20(1)(c)] of this Act.

(3) The [F64 Council] may direct the relevant practitioner not to dispose of, or otherwise deal with, except in accordance with the terms of the direction—

(a) any assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent [F65 conveyancing practitioner] or, as the case may be, an executry practitioner; or

(b) any assets of the practitioner which are specified, or of a kind specified, in the direction.

(4) The [F64 Council] may direct the relevant practitioner to transfer to the [F64 Council], or to such persons (in this section referred to as “the trustees”) as may be specified in the direction—

(a) all assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent [F65 conveyancing practitioner] or, as the case may be, an executry practitioner; or

(b) any assets of the practitioner which are specified, or of a kind specified, in the direction.

(5) A relevant practitioner to whom a direction is given may, within 21 days of the date on which the direction is received by him, apply to the Court of Session, which may make such order in the matter as it thinks fit.

(6) A relevant practitioner to whom a direction is given shall comply with it as soon as it takes effect (and whether or not he proposes to apply to the Court of Session under subsection (5) above).

(7) If, on an application to the Court of Session by the [F64 Council], the court is satisfied—

(a) that a relevant practitioner has failed, within a reasonable time, to comply with any direction given to him; or

(b) that there is a reasonable likelihood that a relevant practitioner will so fail,

the court may make an order requiring the practitioner, and any other person whom the court considers it appropriate to subject to its order, to take such steps as the court may direct with a view to securing compliance with the direction.

(8) Any assets which have been transferred as a result of a direction given under subsection (4) above shall be held by the [F64 Council], or by the trustees, on trust for the client or, as the case may be, the practitioner concerned.

(9) The trustees may deal with any assets which have been transferred to them only in accordance with directions given to them by the [F64 Council].

(10) If the [F64 Council] have reasonable cause to believe that a relevant practitioner or an employee of a relevant practitioner has been guilty of dishonesty resulting in pecuniary loss to a client of the relevant practitioner, they may apply to the Court of Session for an order that no payment be made by any bank, building society or other body named in the order out of any bank, building society or other account or any sum deposited in the name of the relevant practitioner without the leave of the court and the court may make such an order.

(11) Any direction under this section—

(a) shall be given in writing;

(b) shall state the reason why it is being given;

(c) shall take effect on such date as may be specified in the direction (which may be the date on which it is served on the relevant practitioner); and

(d) may be varied or revoked by a further direction given by the [F64 Council].

(12) In this section—

• “assets” includes any sum of money (in whatever form and whether or not in any bank, building society or other account) and any book, account, deed or other document held by the relevant practitioner on his own behalf in connection with his business as a relevant practitioner or on behalf of the client concerned; and

• “independent [F65 conveyancing practitioner]” and “executry practitioner” respectively include any independent [F65 conveyancing practitioner] or executry practitioner whether or not he was registered as such at the time when the matter in relation to which the [F64 Council] exercise or propose to exercise their powers under this section arose and notwithstanding that subsequent to that time he has ceased to be so registered.

Textual Amendments

F64 Word in s. 21 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(8)(a); S.S.I. 2003/384, art. 2(d)

F65 Words in s. 21 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(8)(b); S.S.I. 2003/384, art. 2(d)

F66 Words in s. 21(2)(c) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(8)(c); S.S.I. 2003/384, art. 2(d)

[F67 21A Powers of investigation S

(1) The Council may exercise the power conferred by subsection (3) below for any of the following purposes—

(a) an inquiry under subsection (1) of section 20 of this Act;

(b) a review under subsection (11)(a) of that section; and

(c) consideration by the Council whether to exercise the powers conferred on them by section 21 of this Act.

(2) The Scottish Solicitors' Discipline Tribunal may exercise the power conferred by subsection (3) below for any of the following purposes—

(a) an inquiry under subsection (2A) of section 20 of this Act; and

(b) an appeal under subsection (11)(b) of that section.

(3) The Council or, as the case may be, the Tribunal may give notice in writing to a practitioner specifying the subject matter of their investigation and requiring either or both of the following—

(a) the production or delivery to any person appointed by the Council or, as the case may be, the Tribunal, at a time and place specified in the notice, of such documents so specified as are in the possession or control of the practitioner and relate to the subject matter of the investigation;

(b) an explanation, within such period being not less than 21 days as the notice may specify, from the practitioner regarding the subject matter of the investigation.

(4) If a practitioner fails to comply with a notice under subsection (3)(a) above, the Council or, as the case may be, the Tribunal may apply to the Court of Session for an order requiring him to produce or deliver the documents to the person appointed at the place specified in the notice within such time as the court may order.]

Textual Amendments

F67 Ss. 21A-21C inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(9); S.S.I. 2003/384, art. 2(d)

[F67 21B Procedures of the Scottish Solicitors' Discipline Tribunal etc. S

(1) Paragraphs 7 to 9, 11, 13 to 15 and 18A to 22 of Schedule 4 to the Solicitors (Scotland) Act 1980 (c. 46) (which make provision as to certain powers and procedures of the Scottish Solicitors' Discipline Tribunal) apply in relation to complaints made against conveyancing and executry practitioners as they apply in relation to complaints against solicitors, but as if—

(a) in paragraph 8A, sub-paragraph (b) and the word “; or” immediately preceding it were omitted; and

(b) in paragraphs 9 and 19, the references to Part IV of that Act were references to sections 20 and 21A of this Act.

(2) Paragraphs 7, 8, 11, 13 to 15 and 18A to 22 of that Schedule to that Act apply in relation to any appeal under subsection (11)(b) of section 20 of this Act as they apply, by virtue of subsection (1) above, in relation to any complaint against conveyancing and executry practitioners, and—

(a) the modifications made to those paragraphs by paragraph 23(a), (b) and (d) of that Schedule apply for the purposes of that application of those paragraphs; and

(b) paragraphs 24 and 25 of that Schedule apply in relation to any such appeal as they apply in relation to an appeal to which those paragraphs apply, but as if the reference in paragraph 24 to Part IV of that Act were a reference to sections 20 and 21A of this Act.

(3) In the case of a decision by the Scottish Solicitors' Discipline Tribunal—

(a) to take any of the steps set out in subsection (2B) of section 20 of this Act; or

(b) in an appeal under subsection (11)(b) of that section,

subsection (4) below applies.

(4) Where this subsection applies and—

(a) no appeal has been made to the Court under subsection (11A) of section 20 of this Act against the decision; or

(b) such an appeal has been made but has—

(i) been withdrawn; or

(ii) resulted in the Tribunal’s decision being upheld,

the clerk of the Tribunal shall send to the Council a copy of the decision of the Tribunal certified by him and the decision of the Court in any such appeal.

(5) If the decision of the Tribunal so certified is to suspend or revoke the registration of the practitioner under paragraph (a) of subsection (2B) of section 20 of this Act, the Council shall—

(a) give effect to the decision; and

(b) cause a note of the effect of the decision to be entered against the name of the practitioner in the register of conveyancing practitioners or, as the case may be, of executry practitioners.]

Textual Amendments

F67 Ss. 21A-21C inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(9); S.S.I. 2003/384, art. 2(d)

[F67 21C Compensation fund S

(1) The Council shall establish and maintain a fund for the purpose of making grants to compensate persons who in the opinion of the Council have suffered pecuniary loss by reason of dishonesty in connection with the provision of—

(a) conveyancing services by or on behalf of an independent conveyancing practitioner; and

(b) executry services to the public for a fee, gain or reward by or on behalf of an executry practitioner.

(2) The Council may, for the purpose of guaranteeing the sufficiency of the fund mentioned in subsection (1) above, enter into a contract of insurance with any person authorised by law to carry out insurance business.

(3) The Scottish Ministers may—

(a) make contributions to the fund mentioned in subsection (1) above; and

(b) defray any premium, fee or other expense payable by the Council under or in relation to a contract entered into under subsection (2) above.

(4) The Council may, with the approval of the Scottish Ministers, make rules with regard to the operation of the fund mentioned in subsection (1) above and, without prejudice to the foregoing generality, such rules may make provision as to—

(a) contributions to be paid to the fund by independent conveyancing practitioners and by executry practitioners who provide executry services to the public for a fee, gain or reward;

(b) the procedure for making claims against the fund; and

(c) the administration, management and protection of the fund.

(5) The fund for the purpose of making grants to compensate persons by reason of dishonesty in connection with the provision of conveyancing and executry services maintained by the Scottish Conveyancing and Executry Services Board immediately before the coming into force of this subsection shall be transferred to and vested in the Council; and that fund shall be applied by the Council to the fund established under subsection (1) above.

(6) Any rules as to the fund transferred under subsection (5) above having effect immediately before the coming into force of this subsection shall have effect with respect to the fund established under subsection (1) above as if they were rules made under subsection (4) above; and the Council may amend or repeal any such rules.]

Textual Amendments

F67 Ss. 21A-21C inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(9); S.S.I. 2003/384, art. 2(d)

22 Disclosure of documents etc. S

(1) Any communication made to or by—

(a) an independent [F68 conveyancing practitioner] or an executry practitioner in the course of his F69 ... acting as such for a client; or

F70 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

shall in any action or proceedings in any court be protected from disclosure on the ground of confidentiality between client and professional legal adviser in like manner as if the [F71 practitioner] had at all material times been a solicitor acting for the client.

(2) Any enactment or instrument making special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to confidentiality between client and professional legal adviser could be maintained, shall, with any necessary modifications, have effect in relation to—

(a) an independent [F68 conveyancing practitioner]; [F72 and]

(b) an executry practitioner; F73 ...

F73 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

as it has effect in relation to a solicitor.

Textual Amendments

F68 Words in s. 22 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(10)(a); S.S.I. 2003/384, art. 2(d)

F69 Words in s. 22(1)(a) repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(10)(b)(i); S.S.I. 2003/384, art. 2(d)

F70 S. 22(1)(b) and word repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(10)(b)(ii); S.S.I. 2003/384, art. 2(d)

F71 Word in s. 22(1) substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(10)(b)(iii); S.S.I. 2003/384, art. 2(d)

F72 Word in s. 22(2) inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(10)(c)(i); S.S.I. 2003/384, art. 2(d)

F73 S. 22(2)(c) and word repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(10)(c)(ii); S.S.I. 2003/384, art. 2(d)

Commencement Information

I3 S. 22 partly in force; s. 22 not in force at Royal Assent see 75(2); s. 22(1)(a)(2)(a)(b) in force at 1.3.1997 by S.I. 1996/2894, art. 3, Sch. and S.I. 1996/2966, art. 2

23 Interpretation of sections 16 to 22. S

In sections 16 to 22 of this Act and this section, except where the context otherwise requires—

• F74 ...

• [F75 “conveyancing practitioner” means a person registered under section 17 in the register of conveyancing practitioners;]

• “conveyancing services” means the preparation of writs, contracts and other documents in connection with the transfer of heritable property and loans secured over such property, and services ancillary thereto[F76 , including (in the case of independent conveyancing practitioners) relevant notarial services], but does not include any services—

(a) relating to the arranging of a loan; or

(b) falling within section 1(1)(a) of the M1 Estate Agents Act 1979;

• [F77 “the Council” means the Council of the Law Society of Scotland;]

• “executry practitioner” means a person registered under section 18 in the register of executry practitioners;

• “executry services” means the drawing and preparation of papers on which to found or oppose an application for a grant of confirmation of executors and services in connection with the administration, ingathering, distribution and winding up of the estate of a deceased person by executors, but does not include anything which constitutes [F78 carrying on a regulated activity within the meaning of the Financial Services and Markets Act 2000];

• “inadequate professional services” means professional services which are in any respect not of the quality which could reasonably be expected of a competent practitioner; and references to the provision of inadequate professional services shall be construed as including references to not providing professional services which such a practitioner ought to have provided;

• [F79 “independent conveyancing practitioner” means a conveyancing practitioner whose entry in the register of conveyancing practitioners has been annotated to that effect under section 17(1B);]

• “practitioner” means an executry practitioner or a [F80 conveyancing practitioner];

• F81 ... F82 ...

• F82 ... [F83 and

• “relevant notarial services” means the functions exercisable by independent conveyancing practitioners by virtue of section 14(1) and (2) of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4).]

Textual Amendments

F74 Definition in s. 23 repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(a); S.S.I. 2003/384, art. 2(d)

F75 Definition "conveyancing practitioner" in s. 23 inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(b); S.S.I. 2003/384, art. 2(d)

F76 Words in s. 23 inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(c); S.S.I. 2003/384, art. 2(d)

F77 Definition "the Council" in s. 23 inserted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(d); S.S.I. 2003/384, art. 2(d)

F78 Words in the definition of “executry services” in s. 23 substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 233

F79 Definition in s. 23 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(e); S.S.I. 2003/384, art. 2(d)

F80 Words in s. 23 substituted (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(f); S.S.I. 2003/384, art. 2(d)

F81 Definition in s. 23 repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(g); S.S.I. 2003/384, art. 2(d)

F82 Definition in s. 23 and word preceding it repealed (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(h); S.S.I. 2003/384, art. 2(d)

F83 Definition "relevant notarial services" in s. 23 added (15.8.2003) by Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), s. 21(2), Sch. 4 para. 12(11)(i); S.S.I. 2003/384, art. 2(d)

Commencement Information

I4 S. 23 wholly in force at 1.4.1991 see s. 75(2) and S.I. 1991/822, art. 3, Schedule.

Marginal Citations

M1 1979 c. 38.